Diab v Regina [2009] NSWCCA 58

New South Wales Court of Criminal Appeal

CITATION: Diab v Regina [2009] NSWCCA 58

HEARING DATE(S): 5 March, 2009

JUDGMENT DATE: 11 March 2009

JUDGMENT OF: Beazley JA at 1; Blanch J at 2; Howie J at 18

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - manslaughter

LEGISLATION CITED: Crimes Act, 1900, s18(1)(b)

CATEGORY: Principal judgment

CASES CITED : R v Forbes (2005) 160 A Crim R 1

PARTIES: Ali Diab (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2006/3149

COUNSEL: I McClintock SC/M Coroneos (Applicant) D Arnott SC (Respondent)

SOLICITORS: Justin Hanby, Hanby & Associates (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2006/1451

LOWER COURT JUDICIAL OFFICER: Studdert J

LOWER COURT DATE OF DECISION: 7 June, 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Ali Diab

IN THE COURT OF CRIMINAL APPEAL

CCA 2006/3149

BEAZLEY JA BLANCH J HOWIE J

11 March, 2009

Ali DIAB v Regina

JUDGMENT

1 BEAZLEY JA: I agree with Blanch J.

2 BLANCH J: This is an application for leave to appeal against a sentence imposed in the Supreme Court on 7 June, 2007. The applicant had entered a plea of guilty to a charge of manslaughter contrary to s18(1)(b) of the Crimes Act, 1900 and he was sentenced to imprisonment for a non-parole period of 7 years and 9 months to date from 7 June, 2005 with a balance of term of 2 years and 6 months. The maximum penalty for the offence is 25 years imprisonment.

3 The applicant had been committed for trial on a charge of murder but the Crown subsequently presented an indictment for manslaughter accepting it could not discharge its onus of proving beyond reasonable doubt the applicant did not believe his conduct was necessary to defend himself.